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Burrows-3Rd Edn.Vp Contents Acknowledgements vii Preface ix Table of Cases xxv Table of Legislation xlix PART ONE: THE FORMATION OF A CONTRACT 1. OFFER AND ACCEPTANCE 3 1. Introduction 3 (1) What is a Contract? 3 (2) Offer and Acceptance 4 2. Offers and Invitations to Treat 4 (1) Two General Illustrative Cases 5 Harvey v Facey 5 Gibson v Manchester City Council 5 (2) Display of Goods for Sale 7 Fisher v Bell 7 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd 8 (3) Advertisements 10 Partridge v Crittenden 10 Carlill v Carbolic Smoke Ball Company 11 (4) Auction Sales http://www.pbookshop.com 16 Barry v Davies 16 (5) Tenders 19 Spencer v Harding 19 Harvela Investments Ltd v Royal Trust Company of Canada (CI) Ltd 20 Blackpool and Fylde Aeroclub Ltd v Blackpool Borough Council 22 3. Acceptance 26 (1) Acceptance by Conduct 26 Brogden v Metropolitan Railway Co 26 (2) ‘Battle of the Forms’ 27 Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd 27 (3) Communication of Acceptance 33 (a) The General Rule: Acceptance must be Received by Offeror 33 Entores Ltd v Miles Far East Corporation 33 Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH 36 xii Contents (b) Acceptance by Post 38 Household Fire and Carriage Accident Insurance Co Ltd v Grant 38 Holwell Securities Ltd v Hughes 40 (c) Waiver by Offeror of the Need for Communication of Acceptance 42 Felthouse v Bindley 42 (4) Prescribed Mode of Acceptance 44 Manchester Diocesan Council for Education v Commercial and General Investments Ltd 44 (5) Acceptance in Ignorance of an Offer 45 R v Clarke 45 (6) Acceptance in Unilateral Contracts 48 Errington v Errington 48 Soulsbury v Soulsbury 49 4. Termination of an Offer 50 (1) Revocation 51 Byrne & Co v Van Tienhoven & Co 51 Dickinson v Dodds 52 (2) Rejection 55 Hyde v Wrench 55 Stevenson, Jacques & Co v McLean 55 5. Problematic Offer and Acceptance 56 The Satanita 57 Additional Reading 59 2. CERTAINTY AND INTENTION TO CREATE LEGAL RELATIONS 61 1. Certainty 61 (1) Vagueness 61 Hillas & Co Ltd v Arcos Ltd 61 Scammell and Nephew Ltd v Ouston 64 (2) Price Not Fixedhttp://www.pbookshop.com 66 May and Butcher Ltd v R 66 Sudbrook Trading Estate Ltd v Eggleton 69 (3) Agreements to Negotiate 71 Walford v Miles 71 (4) A Non-contractual Solution 76 British Steel Corporation v Cleveland Bridge and Engineering Co Ltd 76 2. Intention to Create Legal Relations 79 (1) Social and Domestic Agreements 79 Balfour v Balfour 79 Jones v Padavatton 81 (2) Commercial Agreements 83 Esso Petroleum Co Ltd v Commissioners of Customs and Excise 83 Additional Reading 86 Contents xiii 3. CONSIDERATION AND PROMISSORY ESTOPPEL 89 1. Consideration 89 (1) The Consideration Need Not Be Adequate 90 Chappell & Co Ltd v Nestlé Co Ltd 90 (2) Past Consideration Does Not Count 94 Eastwood v Kenyon 94 PaO On v Lau Yiu Long 95 (3) Consideration and the Promise to Perform, or Performance of, a Pre-existing Duty 98 (a) Pre-existing Duty Imposed by the General Law (ie a Non-contractual Duty) 98 Collins v Godefroy 98 Glasbrook Brothers Ltd v Glamorgan County Council 98 Ward v Byham 100 Williams v Williams 101 (b) Pre-existing Duty under a Contract with a Third Party 102 Shadwell v Shadwell 102 Scotson v Pegg 104 PaO On v Lau Yiu Long 105 (c) Pre-existing Duty under a Contract with the Promisor 106 Stilk v Myrick 106 Williams v Roffey Bros & Nicholls (Contractors) Ltd 108 Foakes v Beer 114 Re Selectmove Ltd 117 2. Promissory Estoppel 120 (1) The Emergence of Promissory Estoppel 120 Hughes v Metropolitan Rly Co 120 Central London Property Trust Ltd v High Trees House Ltd 121 Collier v P & MJ Wright (Holdings) Ltd 123 (2) Promissory Estoppel Not a Cause of Action 125 Combe v Combe 125 Crabb v Arunhttp://www.pbookshop.com District Council 128 Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd 132 Waltons Stores (Interstate) Ltd v Maher 134 Baird Textiles Holdings Ltd v Marks & Spencer plc 139 (3) Promissory Estoppel Requires a Clear and Unequivocal Promise 143 Woodhouse AC Israel Cocoa SA v Nigerian Produce Marketing Co Ltd 143 (4) Does Promissory Estoppel Require Reliance or Detrimental Reliance? 145 WJ Alan & Co Ltd v El Nasr Export and Import Co 145 Société Italo-Belge pour le Commerce et l’Industrie SA v Palm and Vegetable Oils (Malaysia) Sdn Bhd, The Post Chaser 147 (5) Promissory Estoppel Cannot be Founded on a Promise Induced by the Promisee’s Inequitable Conduct 149 D & C Builders Ltd v Rees 149 (6) Does Promissory Estoppel Extinguish or Suspend Rights? 152 xiv Contents Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd 152 Additional Reading 155 PART TWO: THE TERMS OF A CONTRACT 4. IDENTIFYING THE TERMS 159 1. Terms or Mere Representations? 159 Oscar Chess Ltd v Williams 160 Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd 164 Esso Petroleum Co Ltd v Mardon 166 2. Incorporation of a Party’s Written Terms 168 (1) Signature 169 L’Estrange v F Graucob Ltd 169 Curtis v Chemical Cleaning and Dyeing Co 170 (2) Reasonable Notice 172 Parker v The South Eastern Railway Company 172 Chapelton v Barry Urban District Council 175 Olley v Marlborough Court Ltd 176 Thornton v Shoe Lane Parking Ltd 177 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd 181 AEG (UK) Ltd v Logic Resource Ltd 184 O’Brien v MGN Ltd 189 (3) Course of Dealing 191 McCutcheon v David MacBrayne Ltd 191 Hollier v Rambler Motors (AMC) Ltd 193 (4) The Parties’ Trade Practice 195 British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd 195 3. Implied Terms 197 (1) Terms Implied by the Courts 197 (a) Terms Impliedhttp://www.pbookshop.com by Fact 197 The Moorcock 197 Attorney-General of Belize v Belize Telecom Ltd 201 (b) Terms Implied by Law 204 Liverpool City Council v Irwin 204 Shell UK Ltd v Lostock Garage Ltd 210 Scally v Southern Health and Social Services Board 213 (2) Terms Implied by Statute 217 (a) Contracts for the Sale of Goods 217 Sale of Goods Act 1979, sections 12–15 217 (b) Contracts for Services 220 Supply of Goods and Services Act 1982, sections 13–15 220 Additional Reading 221 Contents xv 5. INTERPRETING THE TERMS 223 1. The Modern Approach to Construction 223 Investors Compensation Scheme Ltd v West Bromwich Building Society 223 Chartbrook Ltd v Persimmon Homes Ltd 226 2. Construction of Exemption Clauses 231 (1) Excluding or Limiting Liability for Negligence 231 Alderslade v Hendon Laundry Ltd 231 Canada Steamship Lines Ltd v R 233 Hollier v Rambler Motors (AMC) Ltd 236 (2) Excluding or Limiting Liability for Fundamental Breach 239 Photo Production Ltd v Securicor Transport Ltd 239 (3) Construing Limitation Clauses 244 Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd 244 George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd 246 Additional Reading 249 6. STATUTORY CONTROL OF UNFAIR TERMS 251 1. The Unfair Contract Terms Act 1977 252 The Unfair Contract Terms Act 1977, sections 1–14, 26–27, 29, Schedules 1 and 2 252 (1) Overview of the Central Scheme of UCTA 1977 260 (2) Excluding Liability for Breach of the Statutory Implied Terms in Contracts for the Sale of Goods and Analogous Contracts 261 (3) Cases on UCTA 1977 262 (a) What is Meant by ‘Dealing as Consumer’? 262 R & B Customs Brokers Co Ltd v United Dominions Trust Ltd 262 (b) What Counts as an Exclusion of Liability, or as Equivalent to such an Exclusion, so as to Fall within the Act? 266 Phillips Products Ltd v Hyland 266 Thompson v T Lohan (Plant Hire) Ltd 268 Smith v Eric http://www.pbookshop.comS Bush 271 Stewart Gill Ltd v Horatio Myer & Co Ltd 273 Tudor Grange Holdings Ltd v Citibank NA 274 (c) Does the Clause Pass, or Fail, the Reasonableness Test? 277 George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd 277 Phillips Products Ltd v Hyland 279 Smith v Eric S Bush 283 Stewart Gill Ltd v Horatio Myer & Co Ltd 285 St Albans City and District Council v International Computers Ltd 287 Watford Electronics Ltd v Sanderson CFL Ltd 290 2. The Unfair Terms in Consumer Contracts Regulations 1999 293 Unfair Terms in Consumer Contracts Regulations 1999 294 (1) Overview of the Central Scheme of the 1999 Regulations 300 (2) What is the Relationship Between the 1999 Regulations and UCTA 1977? 301 (3) Case-law on the 1999 Regulations 302 xvi Contents Director General of Fair Trading v First National Bank Plc 303 (4) A Note on Good Faith 307 3. Reform of the Legislation on Unfair Terms 308 Additional Reading 310 PART THREE: REMEDIES FOR BREACH OF CONTRACT 7. TERMINATION 315 1. The Meaning of Termination for Breach 316 Photo Production Ltd v Securicor Transport Ltd 316 2. Conditions, Warranties and Innominate Terms 318 Sale of Goods Act 1979, sections 12–15 318 Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd 319 Maredelanto Compania Naviera SA v Bergbau – Handel GmbH, The Mihalis Angelos 323 L Schuler AG v Wickman Machine Tool Sales Ltd 325 Cehave NV v Bremer Handelsgesellschaft mbH, The Hansa Nord 328 Bunge Corporation v Tradax Export SA 331 Sale of Goods Act 1979, section 15A 334 3. Termination Clauses 335 Lombard North Central plc v Butterworth 335 Rice v Great Yarmouth Borough Council 338 4. Anticipatory Breach 342 Hochster v De La Tour 342 5.
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